Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 72a

is nevertheless, by Rabbinical law, eligible to [vicarious] possession;¹  so here too, there is no difference.²  But the analogy is false; an Israelite [minor] comes [eventually] within the principle of agency, but a heathen never does.³

Our Rabbis taught: If an Israelite borrowed money on interest from a heathen and then recorded them [Viz., the principal and the interest] against him as a loan,⁴  and he [the creditor] became a proselyte: if this settlement preceded his conversion, he may exact both the principal and the interest; if it followed his conversion, he may collect the principal, but not the interest.⁵  Similarly, if a heathen borrowed money on interest from an Israelite, and then recorded them [the principal and the interest] against him as a loan, and became a proselyte: if the settlement preceded his conversion, he [the Israelite] may exact both the principal and the interest; if it followed his conversion, he may exact the principal but not the interest. R. Jose ruled: If a heathen borrowed money from an Israelite on interest, then in both cases [whether conversion preceded the settlement or the reverse] he may collect both the principal and the interest. Raba said in the name of R. Hisda in the name of R. Huna: The halachah is as R. Jose. Raba said: What is the reason of R. Jose? That it should not be said that he turned a proselyte for the sake of money.⁶

Our Rabbis taught: If a bond contains interest written therein, he [the note-holder] is penalised and can collect neither the principal nor the interest; this is R. Meir's view. The Sages maintain: He may exact the principal, but not the interest. Wherein do they differ? — R. Meir is of the opinion that we inflict the forfeiture of what is permissible on account of what is forbidden; whilst the Sages hold that we do not inflict the forfeiture of the permissible on account of the forbidden.

We learnt elsewhere: Ante-dated bonds are invalid; post-dated bonds are valid.⁷  But why invalid? Though a seizure cannot be made by means of them as from the earlier [incorrect] date, why not seize [estate for repayment] as from the later [correct] date?⁸  — R. Simeon b. Lakish said: This was taught as a matter of dispute, and agrees with R. Meir.⁹  R. Johanan said: It may agree even with the Rabbis; but it is a precautionary measure, lest he exact [his debt from sold property] as from the earlier date.¹⁰

A man once pledged an orchard to his neighbour for ten years.¹¹  After he [the creditor] had taken its usufruct for three years, he proposed to him [the debtor], 'If you sell it to me, it is well; if not, I will hide the mortgage deed and claim that I have bought it.'¹²  Thereupon he [the debtor] went, arose, transferred it to his young son [a minor], and then sold it to him. Now, the sale is certainly no sale;¹³  but is the [purchase-]money accounted as a written debt, and collectable from [sold] mortgaged property, or perhaps it is [only] as a verbal debt, which cannot be collected from mortgaged property?¹⁴  Said Abaye: Is this not covered by R. Assi's dictum? Viz.,

1. I.e., an adult may take possession on behalf of a minor.
2. Hence in the first clause, where the second borrower is presented to the heathen, the first Jew takes possession of the money which he was about to repay on behalf of the heathen, and therefore it is the latter's money that is lent on interest, and hence permissible.
3. For to take possession on another man's behalf is akin to becoming his agent. Thus the Rabbis conferred upon a minor the privilege of being so benefited, because he is potentially an agent or a principal, but a heathen is not even potentially so. [Levinthal, I.H., JQR, (N.S.) XIII, p. 150, suggests the principal reason swaying the Rabbis in their decision barring the heathen from acting as agent to have been the fact that the agent in Jewish law is frequently compelled to take an oath, and the oath being considered a most sacred role in the life of the people there was no desire to force a heathen to comply with the strictness of that act.]
4. I.e., drew up a bond in which the combined principal and interest figured as the principal.
5. Since the bond was drawn up when he was forbidden usury.
6. To evade the payment of interest.
7. Sheb. X, 5; v. supra 17a.
8. Though it is only right that the creditor should not seize land sold after the date of the bond but prior to the actual loan, why should he not seize land sold after the loan was made?
9. Who maintains that we inflict the forfeiture of what is permissible on account of what is forbidden. So here too.
10. To prevent this, such a bond was declared entirely invalid.
11. [So according to some texts; v. D.S.]
12. Three years' possession of an estate establishes a presumptive title thereto, even without a deed of sale, the onus of disproof lying upon the first owner.
13. Because it no longer belonged to the debtor (Rashi).
14. When one sold land, he indemnified the purchaser against its possible seizure for the vendor's debt by mortgaging his other property to him, which he could in turn seize even if subsequently sold. Similarly, in a written loan the debtor's estates were held to be pledged, even if subsequently sold; but if the loan was merely verbal, the debt could be exacted only from the free estate. Now the question arises whether the purchase money in this case, which of course, the vendor must return, ranks as a written debt, or only as a verbal one.

If he [the debtor] admits the genuineness of a bond, he [the creditor] need not confirm it'¹  and can collect [his debt] from mortgaged property [sold after the debt was contracted]!²  Thereupon Raba said to him: How compare? There it is permissible to write it, but here it is not permissible to write it at all!³  Now, Meremar sat and recited this discussion, whereupon Rabina said to Meremar: If so, when R. Johanan said;⁴  It is a precautionary measure, lest he exact his debt as from the earlier date, — let us say that it was not permissible to write it at all! — Said he: Is there the least analogy? There, granted that it was not permissible to write it from the earlier date, it was permissible to write it from the later date; but here it was not permissible to write it at all. But surely with respect to that which has been taught: As to claims for land improvement,⁵  e.g., if one took away unlawfully a field from his neighbour and sold it to another, who effected improvements therein, and then it was seized from him [by the first owner], when he [the buyer] exacts [his due from the robber], he may collect the principal [even] from mortgaged property [that has since been sold], but the improvements only from the free [i.e., unsold] property⁶  — let us say that it [the deed of sale] was not permissible to be written at all!⁷  — How now? There, whether on the view that he [the vendor] is anxious not to be called a robber, or on the view that he is desirous of retaining his [the purchaser's] trust,⁸  he seeks to pacify the first owner, so as to validate the deed.⁹  Here, however, it was his purpose to save it from his clutches, shall he then validate the deed?¹⁰

MISHNAH. A MAN MUST NOT FIX A PRICE FOR PRODUCE UNTIL THE MARKET PRICE IS KNOWN; ONCE THE MARKET IS ESTABLISHED, A FIXED PRICE MAY BE AGREED UPON, FOR EVEN IF ONE HAS NO STOCK, ANOTHER HAS. IF HE WAS OF THE FIRST HARVESTERS, HE [THE BUYER] MAY ENTER INTO A CONTRACT FOR [THE CROPS IN] THE STACK,¹¹  THE BASKET OF GRAPES,¹²  THE VAT OF OLIVES,¹³  POTTERS' LUMPS OF CLAY,¹⁴  AND FOR LIME WHEN IT HAS ALREADY BEEN PLACED IN THE KILN.¹⁵  ONE MAY ALSO MAKE A FIXED CONTRACT FOR MANURE FOR THE WHOLE YEAR. R. JOSE MAINTAINED: NO CONTRACT FOR MANURE MAY BE ENTERED INTO UNLESS HE [THE VENDOR] HAS THE MANURE IN DUNG PITS; BUT THE SAGES PERMIT IT. AND ONE MAY ALSO BARGAIN FOR THE LOWEST PRICE.¹⁶  R. JUDAH SAID: EVEN IF HE DID NOT STIPULATE FOR THE LOWEST PRICE, HE MAY DEMAND, 'SUPPLY ME AT THIS PRICE, OR RETURN MY MONEY.'¹⁷

GEMARA. R. Assi said in R. Johanan's name: One may not fix a contract at market prices.¹⁸  R. Zera questioned R. Assi: Did R. Johanan rule thus even of a great fair?¹⁹  He replied: R. Johanan referred only to town markets, where values fluctuate.²⁰  Now, on the original hypothesis that R. Johanan referred even to a great fair, how is our Mishnah conceivable, which teaches, A MAN MUST NOT FIX A PRICE FOR PRODUCE UNTIL THE MARKET PRICE IS KNOWN; ONCE THE MARKET PRICE IS ESTABLISHED, A FIXED PRICE MAY BE AGREED UPON? — Our Mishnah relates to wheat in granaries and ships, whose fixed price extends over a long period.²¹

Our Rabbis taught: One may not contract for commodities until the market price is out; once the market price is established, a contract may be entered into, for even if one [the vendor] has no stock, another has. If the new supplies were at four [se'ahs per sela'] and the old at three, a contract may not be made until the price has been equalised for the new and old.²²  If the gleaned grains²³  were [priced] at four [se'ahs and upward per sela'], whilst ordinary stock²⁴  at three, a contract must not be entered into [at a fixed maximum price] until the same market price has been established for the gleaner²⁵  and the merchant.

R. Nahman said: One may contract for gleanings at the price of gleanings.²⁶  Said Raba to R. Nahman: Why does the gleaner differ?²⁷  Because if he lacks stock, he will borrow from his fellow gleaner? Then even a merchant²⁸  can borrow from a gleaner!²⁹  — He replied: A merchant deems it undignified to borrow from a gleaner. Alternatively, he who pays money to a merchant expects to receive best quality produce.³⁰

R. Shesheth said in R. Huna's name: One may not borrow upon the market price.³¹  Thereupon R. Joseph b. Hama said to R. Shesheth — others say, R. Jose b. Abba said to R. Shesheth: Did R. Huna actually rule thus? But a problem was propounded of R. Huna: The students who borrow in Tishri and repay in Tebeth — is it permitted or forbidden?³²  He replied: Wheat may be procured in Hini and Shili:³³  if they wish, they can buy [in Tishri] and repay!³⁴  — At first R. Huna held that one must not borrow, but on hearing that R. Samuel b. Hiyya said in R. Eleazar's name that one may, he too ruled likewise.

Our Rabbis taught: If a man was transporting a load from place to place,³⁵  when his neighbour met him and proposed: 'Let me have it, and I will pay you for it the price you would obtain there,'

1. For if the debtor asserts that it is forged, the signatories thereto must attest their signatures.
2. [V. supra 7a. Similarly here, since he admits having written the deed, the money liability involved ought to rank as a written debt!]
3. [Since the sale was invalid.]
4. With reference to an ante-dated bond of indebtedness.
5. V. supra 14b.
6. He is empowered to collect the principal even from sold property in virtue of the deed of sale, which guarantees to indemnify the purchaser in the event of its being seized and mortgages the vendor's estates for that purpose.
7. Hence should be invalid.
8. V. supra 15b.
9. I.e., when selling the field, it is his intention to compensate the first owner, so that the deed drawn up for the second may be valid. Consequently, it is genuine, and the purchaser can act thereon.
10. Surely not! Hence its writing was unwarranted, and therefore it may be regarded as invalid.
11. I.e., for the grain already in stacks, though no market price has been established.
12. A basket used for carrying grapes during the vintage; the meaning is that one may fix a price for the wine to be manufactured from grapes already vintaged in baskets.
13. As in the preceding note.
14. I.e., for the earthenware to be manufactured thereof.
15. In all these cases the vendor is held to be in possession of the articles he is selling, though they are not completely manufactured. Consequently, a price may be agreed upon and paid, and though delivery will not be effected until later, by which time the market price may have advanced (for in all these cases the reference is to a sale before a market price has been established at all), it is nevertheless permissible, the lower pre-payment not ranking as interest.
16. Lit., 'the high price', i.e., the price at the height of the market when the commodity is cheap. After fixing a price, the vendor may contract to supply stock throughout the year at the lowest price prevailing at the time of each delivery. Thus, the first price fixed is only to be regarded as a maximum, not to be exceeded if the market price advances.
17. In the whole Mishnah the reference is to advance payment at a fixed rate. R. Judah maintains that even without a definite stipulation it is always implied, therefore the purchaser can insist upon the advantage of a price-drop or rescind the sale, without being deemed dishonourable and subject to the curse. (V. supra 44a.)
18. I.e., to supply for a certain period at the market price prevailing at the time of the contract. This prohibition naturally refers only to the case where the vendor himself lacks supplies when making the contract.
19. That one may not contract at the market price ruling in great fairs, though such are generally stable, and a fair indication of value. — Durmos, the word in the text, is a disguise of [G], or Mercurius, the divinity of commerce to whom a great annual fair, probably of Tyre, was dedicated (Jast.). [Krauss, Lehnworter, connects it with the [G], race-course, which was also the market-place.]
20. Lit., 'are not fixed.'
21. When the wheat has been stored, or sufficient has been imported, its price is stabilised and there is no fear of appreciation, which may result in an appearance of interest.
22. New supplies were cheaper, because they were not yet fully dried. Now the purchaser, though paying early, does not receive the wheat until that too becomes old, and if he contracts for the whole at the price of new, he receives interest. Therefore he must wait until the same market price is fixed for both.
23. I.e., grains gleaned in small quantities from many fields, and consequently of inferior quality and cheaper.
24. Lit., 'of all men'.
25. I.e., the petty trader in gleanings.
26. Though a contract may not be made until the prices are equalised, that is only if the vendor may supply gleanings or ordinary stock; but if the vendor is a gleaner, supplying only gleanings, the transaction is permitted.
27. That you permit it.
28. Lit., 'a householder', 'landlord'.
29. Hence the transaction should be universally permitted, for even an ordinary factor may obtain supplies of gleanings when his own stock is exhausted.
30. Hence, if he pays the lower price of gleanings, he receives interest for advancing the money.
31. Rashi: One may not borrow money with the stipulation that if it is not repaid by a certain date, provisions will be supplied in its stead at the market price prevailing at the time of the loan, which is lower than that which will prevail later. Others: One may not borrow a se'ah of corn to repay a se'ah later, when its value will have advanced, in reliance upon the fact that the corn has a fixed market price, and it is possible for the borrower to obtain a se'ah now or at any time that the price remains unaltered, either by cash or on credit, and keep it until repayment is due.
32. Tishri is the seventh month of the Jewish year, Tebeth the tenth. If they borrow money in Tishri and repay in kind in Tebeth at the prices of Tishri; or (taking the second interpretation, p. 420, n. 11) if they borrow provisions in Tishri and return the same quantity in Tebeth, is the transaction permitted?
33. V. p 377, n. 3.
34. Hence the transaction is not usurious. This contradicts R. Huna's former ruling.
35. To sell, its value there being greater.